Action to recover the price of about 1,100 bushels of wheat, at $1.04 per bushel, which plaintiff- claimed to have sold to defendant. The agreement for the sale was oral, no part of the purchase-money was paid, and the. principal question on the trial was whether there was a sufficient acceptance and receipt by defendant of the wheat, or any part thereof, to make the agreement valid under the statute of frauds. The wheat lay in three piles in the plaintiff’s warehouse. The agreement was made at that place, and after some examination by defendant. The evidence of the plaintiff indicated that defendant was satisfied with the examination, and agreed *354to take the wheat as it was. The evidence of the defendant indicated that there was to be 3,400 bushels in all, and the largest pile throughout was to .be of the same quality as it appeared on top. Defendant was to clean, sack, and weigh the wheat in the warehouse. Plaintiff testified he agreed to accept the defendant’s weight, and defendant testified that plaintiff was to send a man to see it weighed. Nothing was said as to when the wheat was to be paid for, nor when defendant was to remove it from the warehouse, nor whether it was to be paid for or taken away first; but it appears to have been understood that defendant was to take it from the warehouse. Plaintiff delivered to defendant the key of the warehouse, and the latter went with his servants, his fanning-mill and sacks to the warehouse, and began to. clean the wheat in the largest pile, and to put it in the sacks, and continued until he had cleaned and sacked from 10 to 15 bushels, when, as he says, he found the wheat in the pile did not correspond in quality with that on top. He thereupon stopped cleaning, and soon after notified plaintiff that he would not take the wheat.
In regard to the acceptance required by the statute of frauds, the court instructed the jury that “acceptance, within the meaning of the statute, does not mean such an acceptance of the property as being satisfactory as to quantity and quality as to preclude the buyer from afterwards questioning it. That is not the acceptance meant by the statute. There may have been an acceptance, within the meaning of this statute, that would not be an acceptance of the property as satisfactory in quantity or quality, so as to preclude the buyer from afterwards questioning them.” It may be doubted that this general proposition is correct. It is laid down in some cases, notably in Morton v. Tibbett, 15 Q. B. 428. But it is claimed the correct statement of the law is that where receipt and acceptance of part of the goods is relied on to make the contract valid, the acceptance of such part must be the ultimate acceptance of that part as a part-performance of the contract for sale, leaving no right in the buyer to subsequently reject the part so accepted, or to claim that it is not in accordance with the agreement, though he may not, by such acceptance, be precluded from questioning the quality or quantity of the residue. If this view be right, the court below was inaccurate in its *355statement of the rule. But the only way in which such inaccuracy could prejudice the defendant was by creating on the minds of the jury the impression that defendant’s receipt of the wheat, for the purpose only of cleaning and examining it to ascertain if it was in accordance with representations made by plaintiff, might be an acceptance within the intent of the statute.
The other portions of the charge, stating more specifically the effect of the acts of the parties upon the contract in question, and the kind of acceptance required, sufficiently guard against this. The charge is explicit, and the proposition is several times repeated, that acceptance is to be shown by acts and dealings of defendant with the wheat, indicating that he took possession of it as owner. The distinction between a mere receipt of the wheat, and; an acceptance of it, to give life to the contract, is clearly made to appear in an instruction given at the request of the defendant: “If the jury believe from the evidence that the plaintiff represented and warranted to the defendant that the large pile of wheat was all alike, and that it was not all alike, and did not comply with the warranty, the defendant was not bound to accept the wheat, even though he had received it; and if defendant did not accept the wheat, then you must find a verdict for the defendant.” Noth withstanding, therefore, that the court may have been inaccurate in stating a general proposition, the correct rule applicable to the ease appears to have been given to the jury in such terms that they could not have misunderstood it.
The court refused to charge the jury, at defendant’s request, that “the defendant could receive the wheat to see whether he' would accept it or not; and, if he then refused to accept it, you must find a verdict for the defendant.” This request assumes that there was no acceptance prior to or contemporaneous with the receipt of the wheat, which the court had no right under the evidence to assume. There may be a receipt without any acceptance, and an acceptance without any receipt. Blackburn on Sales, 22. Of the former, a familiar instance is a sale by sample, in which case the buyer may receive the goods to ascertain, before he accepts, that they agree with the samples. An instance of acceptance without receipt is where the sale is of a specific lot of goods, where the bargain itself identifies the *356goods as those sold, and as of the quality which the buyer agrees to buy. Cusack v. Robinson, 1 Best & Smith, 299; Cross v. O'Donnell, 44 N. Y. 661. In such case the buyer accepts when the bargain is made, though he may not receive the goods at that time. If, in this case, the testimony of the defendant was true, he had a right to receive and examine the wheat before acceptance, and ascertain if it was as represented by plaintiff. If, on the other hand, the testimony of plaintiff was true, the jury might find that there was an acceptance at the time the bargain was made. The request calls on the court to determine which testimony was true, and it was therefore bad.
Another request of defendant refused by the court was: “Delivery of the wheat, in expectation of payment as soon as the same was cleaned and weighed, vested no title in the defendant until the price should be paid.” The court did charge that “where nothing is said or done indicating a different intention, a sale is presumed to be for cash, and, when for cash, payment is to precede, or be contemporaneous with, the delivery of the goods to the buyer; and, until payment is made, the title and control are still with the seller. This lien on the part of the seller for the purchase-money may be abandoned, and is abandoned by absolute delivery of the property by the seller to the buyer.” Also: “If you believe that he (Simpson) abandoned his lien by giving absolute control to Krumdick, so that Krumdick had the right to take it away and dispose of it as he pleased without first paying for it, why then you may find that there was an acceptance of the property, within the meaning of the statute, by Krumdick, by his- subsequent exercise of acts of ownership. But if you believe that Simpson <did not surrender absolute control and right of disposition of the property so as to abandon his lien for the purchase-money, but simply gave Krumdick the right of cleaning and weighing preparatory to a delivery of it upon the payment of the purchase-money, then there never was in law a consummated sale of the wheat by Simpson, and a purchase by Krumdick.” The request was erroneous, for Simpson may have made delivery of the wheat for the purpose of passing the title, altfiough it was to be paid for as soon as cleaned and weighed, and before removal from the warehouse. The charge properly laid it down that the. effect of the delivery de*357pended on the intent with which it was made;, that if made with intent that Krumdiek should have absolute control over and right to dispose of it, then he might accept it, and so make the contract valid; but that he could not do so if he had only the right to clean and weigh it preparatory to a delivery for the purpose of passing the'title, upon payment of the purchase-money.
Order affirmed.
Mitchell, J., having presided at the trial in the district court, took no part in this decision. , .